Opinion
2184
November 13, 2003.
Order, Supreme Court, New York County (John Cataldo, J.), entered on or about August 19, 2003, which denied the motion of petitioner's counsel to quash a subpoena served on him to require his production of documents and his appearance as a witness in connection with a criminal action, unanimously modified, on the law, the motion to quash granted to the extent of deleting Item #3 of the document requests in the subpoena, and otherwise affirmed, without costs.
Christopher W. Boyle, for petitioner-appellant.
Olivia Sohmer, for respondent-respondent.
Before: Nardelli, J.P., Tom, Ellerin, Lerner, Friedman, JJ.
Petitioner is suspected of providing movant, her counsel, with documents falsely back-dated so as to exonerate her of the commission of an offense or offenses for which she has been indicted. The motion court properly declined to quash the subpoena insofar as it requested documents already produced to the People, any claim of privilege having been waived by the prior production (see New York Times Newspaper Div. of New York Times Co. v. Lehrer McGovern Bovis, Inc., 300 A.D.2d 169, 172). As for the originals of the subject documents (assuming the ones produced in court were copies), and as to any oral communications that petitioner made to movant with reference to the documents, the People have persuasively shown that the crime-fraud exception applies, since the record demonstrates that there exists a factual basis for a showing of probable cause to believe that a fraud or crime has been committed, and that the communications in question were in furtherance of such fraud or crime (see United States v. Jacobs, 117 F.3d 82, 87). The subpoena's demand for "any medical records provided by [movant] to [petitioner] at any time," however, should have been quashed because the record does not indicate that there is probable cause to believe that a fraud or crime was committed each time a medical document was exchanged between petitioner and movant, or that there is probable cause to believe that communications in connection with each of those documents — however many there may have been — were in furtherance of a fraud or crime (cf. id.; see also United States v. Richard Roe, Inc. [In re Richard Roe, Inc.], 168 F.3d 69, 71).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.